Keve v. Columbia Kid Hair Curlers Manufacturing Co.

Majority

p. 738

Max Keve, Appellant, v. Columbia Kid Hair Curlers Manufacturing Company, Respondent.

First Department,

December 31, 1913.

Headnote

Execution—Municipal Court, of City of New York—jurisdiction of action to enforce execution against salary.

Where, after a judgment has been recovered in the Municipal Court of the City of New York, and the employer of the judgment debtor has failed to comply with an order of the Supreme Court obtained under section 1391 of the Code of Civil Procedure, directing him to withhold ten per cent from the salary of the defendant, the Municipal Court has jurisdiction of an action against such employer to recover such amount.

Appeal by the plaintiff, Max Keve, from an order and determination of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of New York on the 24th day of June, 1913, reversing a judgment of the Municipal Court of the City of New York in plaintiff’s favor and dismissing the complaint, with costs, and also an appeal from an order of said Appellate Term entered in the office of the clerk

p. 739

of the county of New York on the 2d day of July, 1913, denying the plaintiff’s motion for a reargument or for leave to appeal to the Appellate Division.

Harry Stackell, for the appellant.

--, for the respondent.

An action was brought in the Municipal Court of the City of New York, where the plaintiff obtained a judgment against one Schwartz, upon which execution was issued and returned wholly unsatisfied. Plaintiff then obtained an_ order to examine Schwartz in proceedings supplementary to execution, and it was developed upon such examination that he was employed by the defendant corporation at a salary of twelve dollars a week. Thereupon plaintiff caused a transcript of the judgment to be filed and docketed in the county of New York, and thereafter obtained an order in the Supreme Court, under section 1391 of the Code of Civil Procedure, directing the sheriff to collect from the defendant ten per cent of Schwartz’s salary. This order was duly served but defendant paid no attention to it. Plaintiff waited until ten per cent of the salary of the judgment debtor — if the same had been deducted as directed in the order — would have satisfied the judgment, and then brought this action in the Municipal Court of the City of New York to recover such amount. The defendant interposed an answer, in which it claimed the salary of Schwartz had, prior to the service of the order, been reduced from twelve dollars to ten dollars a week. This was the issue tried and the jury rendered a verdict in favor of the plaintiff, upon which judgment was entered. An appeal was taken to the Appellate Term, where the judgment was reversed, on the ground that the Municipal Court did not have jurisdiction of the subject-matter of the action and dismissed the complaint. The judgment was reversed and complaint dismissed on the authority of Weisel v. Old Dominion Steamship Co. ( 99 App. Div. 568 ). That authority, as I read it, has no bearing whatever on the question here presented. It justified neither a reversal of the judgment nor a dismissal of the complaint.

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There plaintiff sought, under section 1391 of the Code of Civil Procedure, to collect in the Municipal Court a judgment recovered in the Supreme Court. It was held that the Municipal Court did not have jurisdiction. This was right because the Municipal Court does not have jurisdiction of an action upon a judgment of the Supreme Court for the reason that its jurisdiction is extended only to an action upon a judgment rendered in any court, not being a court of record. (Mun. Ct. Act [Laws of 1902, chap. 580], § 1, subd. 6; since re-enacted by Laws of 1905, chap. 513.)

The judgment against Schwartz was recovered in the Municipal Court and when the defendant failed to withhold from his salary ten per cent as directed by the order of the Supreme Court, that gave the plaintiff the right to maintain an action — not in the Supreme Court, but in the Municipal Court — upon the judgment there rendered. The remedy provided for in section 1391 of the Code of Civil Procedure is intended to be in furtherance of the collection of the judgment when money available to satisfy the same is in the hands of a third party. The action is based upon the judgment and the execution issued thereon, and as held in the Weisel case, any other construction would defeat the purpose of the statute.

The determination of the Appellate Term is, therefore, reversed, with costs, and the judgment of the Municipal Court affirmed, with costs.

Ingraham, P. J., Laughlin, Dowling and Hotchkiss, JJ., concurred.

Determination reversed, with costs, and judgment of Municipal Court affirmed, with costs. Order to be settled on notice.

Cases cited

Weisel v. Old Dominion Steamship Co. 99 App. Div. 568 N.Y. App. Div. 1904-12-15 p. 739